Gujarat High Court
Kamlesh Jayantibhai Barot vs Niranjanbhai Aaratbhai Barot on 27 January, 2025
NEUTRAL CITATION
C/FA/267/2020 ORDER DATED: 27/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 267 of 2020
With
R/FIRST APPEAL NO. 2146 of 2019
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KAMLESH JAYANTIBHAI BAROT
Versus
NIRANJANBHAI AARATBHAI BAROT & ORS.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
ADITI S RAOL(8128) for the Defendant(s) No. 2
MR YOGI K GADHIA(5913) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 3
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 27/01/2025
ORAL ORDER
1. The present First Appeals, under Section 173 of Motor Vehicles Act, 1988, are preferred by the appellant - original claimant being aggrieved and dissatisfied with the judgment and award dated 13.04.2018 passed by the Motor Accident Claims Tribunal, Vadodara in Motor Accident Claim Petition No.592 of 2009 and MACP No.593 of 2009.
2. Brief facts of the case are as under:
2.1 On 24.0.2009, opponent no.1 who is real uncle of claimant came with his wife and grandson at the residence of claimant.
He took deceased, husband and minor daughter of the claimant along with him in the said car. Opponent no.1 is the owner of Maruti Zen No.GJ-6-CB-7754. Opponent no.1 was driving the Page 1 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025 NEUTRAL CITATION C/FA/267/2020 ORDER DATED: 27/01/2025 undefined Car and parents and minor daughter of claimant and wife and grandson of opponent no.1 were travelling in it. When the car reached near the place of accident, it dashed with Truck No.GTS-7898. As a result, deceased, husband and grandson and wife of opponent no.1 sustained injuries and died on the spot, while minor daughter sustained injuries. It is say of claimants that deceased Urmilaben was 56 years old and healthy deceased Jayantibhai was 60 years old and healthy.
3. Learned advocate for the appellant - claimants submitted that learned Tribunal referred to judgment of this Court in the case of United India Insurance Company Ltd. v/s. Diptiben Ureshbhai Vora [2017 ACJ 234] to believe that major and married sons cannot be said to be dependent of the deceased and upon such consideration, meager compensation of Rs.65,000/- is granted to the claimants. Learned advocate for the appellants referred to judgment of Hon'ble Apex Court in the case of National Insurance Company Limited Versus Birender And Ors. [2020 (11) SCC 356] and submitted that compensation cannot be limited to conventional head and sons being legal representative can claim compensation of their parents. Therefore, he submitted to allow the appeals and enhance the amount of compensation granted to the claimant.
4. Learned advocate for the Insurance Company supported the impugned judgment and argued that since learned Tribunal referred to judgment of this Court in the case of Diptiben (supra), the claimant who is 33 years old and married son cannot claim compensation under dependency factor and Page 2 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025 NEUTRAL CITATION C/FA/267/2020 ORDER DATED: 27/01/2025 undefined therefore, learned Tribunal has rightly assessed compensation to be granted to the claimants. The appeals being bereft of merits deserves to be dismissed.
5. Having heard learned advocates for the parties, what could be noticed that learned Tribunal referred to judgment of this Court in the case of Diptiben (supra) to believe that major son cannot be said to be dependent on the income of the father or mother and calculated compensation under conventional head only.
6. This Court in identical fact situation, in the case of Prernaben @ Purviben Mansukhlal Mehta Decd.Thr Heirs Versus Daudkhan Usmankhan Belim [2024 (0) GUJHC 61440] after referring to various judgments on the issue, in para 11,12,13 and 14 held as under :-
"11. It was argued by learned advocates for the insurance company that deceased Preranaben was unmarried and therefore, the claimants who are father and brother of the deceased cannot claim dependency loss. I am not impressed by the submission canvassed by the learned advocates. Plain reading of section 166(1) of the Act permits legal representatives of the deceased to prefer claim petition. The MV Act, 1988 does not define term "legal representative", but section 2(11) of the CPC, reads as under:-
"SECTION 2 : Definitions In this Act, unless there is anything repugnant in the subject or context,-
(11) "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the Page 3 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025 NEUTRAL CITATION C/FA/267/2020 ORDER DATED: 27/01/2025 undefined deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;
12. Plain reading of section 2(11) of the CPC indicates that in case of death of a person in the motor vehicle accident, the right is available to the legal representative or the agent of the deceased or injured to claim for compensation under the MV Act. The issue as to who is a legal representative or its agent is basically an issue of fact and may be decided one way or the other dependent upon the facts of a particular case. But as a legal proposition it is undeniable that a person claiming to be a legal representative has the locus to maintain an application for compensation under Section 166 of the Act. Said issue came up before the Hon'ble Apex Court for decision in case of Montford Brothers of St. Gabriel and Anr. vs. United India Insurance and Anr., (2014) 3 SCC 394 , whereby, the Full Bench of the Hon'ble Apex Court after referring to the earlier judgment in case of Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and Anr., (1987) 3 SCC 234 , in para 11 to 17 held as under:-
"11. Learned counsel for the Insurance Company tried to persuade us that since the term `legal representative' has not been defined under the Act, the provision of Section 1- A of the Fatal Accidents Act, 1855, should be taken as guiding principle and the claim should be confined only for the benefit of wife, husband, parent and child, if any, of the person whose death has been caused by the accident. In this context, he cited judgment of this Court in the case of Gujarat State Road Transport Corporation, Ahmedabad V/s. Raman Bhai Prabhatbhai & Anr., AIR 1987 SC 1690 . In that case, covered by the Motor Vehicles Act of 1939, the claimant was a brother of a deceased killed in a motor vehicle accident. The Court rejected the contention of the appellant that since the term `legal representative' is not defined under the Motor Vehicles Act, the right of filing the claim should be controlled by the provisions of Fatal Accident Act. It was specifically held that Motor Vehicles Act creates new and enlarged right for filing an application for compensation and such right cannot be hedged in by Page 4 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025 NEUTRAL CITATION C/FA/267/2020 ORDER DATED: 27/01/2025 undefined the limitations on an action under the Fatal Accidents Act.
12. Paragraph 13 of the report reflects the correct philosophy which should guide the courts interpreting legal provisions of beneficial legislations providing for compensation to those who had suffered loss.
"13. We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110-A to 110-F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110-B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110-B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110-A of the Act have to be done in accordance with wellknown principles of law. We should remember that in an Indian family brothers, sisters and brothers' children and some times foster children live together and they are dependent upon the bread-winner of the family and if the bread- winner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira V/s. Chaturbhai Taljabhai, (AIR 1977 Guj.195 and hold that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110-A of the Act if he is a legal representative of the deceased."Page 5 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025
NEUTRAL CITATION C/FA/267/2020 ORDER DATED: 27/01/2025 undefined
13. From the aforesaid quoted extract it is evident that only if there is a justification in consonance with principles of justice, equity and good conscience, a dependant of the deceased may be denied right to claim compensation. Hence, we find no merit in the submission advanced on behalf of the respondent- Insurance Company that the claim petition is not maintainable because of the provisions of the Fatal Accidents Act.
14. On behalf of the appellants it has been rightly contended that proceeding before the Motor Vehicle Claims Tribunal is a summary proceeding and unless there is evidence in support of such pleading that the claimant is not a legal representative and therefore the claim petition be dismissed as not maintainable, no such plea can be raised at a subsequent stage and that also through a writ petition. The objection filed on behalf of the Insurance Company, contained in annexure P.2, does not raise any such objection nor there is any evidence led on this issue. As noted earlier, the Tribunal did frame any issue regarding maintainability of the claim petition on law and fact as issue no.1 but the findings recorded by the Tribunal at page 41 of the paper book show that this issue together with issue nos. 2 and 3 were not pressed by the opposite parties during trial and were accordingly decided in favour of the claimants.
15. In the aforesaid circumstances, the order under appeal dated 20.8.2002 allowing the writ petition suffers from apparent mistake in not noticing the relevant issue decided by the Tribunal and also the fact that the Insurance Company, which was the writ petitioner, had not pressed this issue. It had neither raised pleadings nor led evidence relevant for the said issue.
16. On coming to know about the High Court judgment the appellants filed a review petition in which they gave all the relevant facts including the constitution of the society appellant no.1 in support of their claim that a `Brother' of the Society renounced his relations with the natural family and all his earnings and belongings including insurance claims belonged to the society. These facts could not have Page 6 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025 NEUTRAL CITATION C/FA/267/2020 ORDER DATED: 27/01/2025 undefined been ignored by the High Court but even after noticing such facts the review petition was rejected.
17. A perusal of the judgment and order of the Tribunal discloses that although issue no.1 was not pressed and hence decided in favour of the claimants/appellants, while considering the quantum of compensation for the claimants the Tribunal adopted a very cautious approach and framed a question for itself as to what should be the criterion for assessing compensation in such case where the deceased was a Roman Catholic and joined the church services after denouncing his family, and as such having no actual dependants or earning- For answering this issue the Tribunal relied not only upon judgments of American and English Courts but also upon Indian judgments for coming to the conclusion that even a religious order or organization may suffer considerable loss due to death of a voluntary worker. The Tribunal also went on to decide who should be entitled for compensation as legal representative of the deceased and for that purpose it relied upon the Full Bench judgment of Patna High Court reported in AIR 1987 Pat. 239, which held that the term `legal representative' is wide enough to include even "intermeddlers" with the estate of a deceased. The Tribunal also referred to some Indian judgments in which it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civil Procedure."
13. Worthy assistance can be taken from the judgment of Hon'ble Apex Court in the case of National Insurance Company Ltd. v/s. Birender and Ors [(2020) 11 SCC 356] , whether married and major sons having gainful employment or earning elsewhere can claim compensation and whether claim petition at their instance is maintainable was issue before the Hon'ble Apex Court in the matter. Hon'ble Apex Court in para 12 to 14 has observed as under :-
"12. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the Page 7 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025 NEUTRAL CITATION C/FA/267/2020 ORDER DATED: 27/01/2025 undefined deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:
"9. In terms of clause (c) of subsection (1) of section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said subsection makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act. 10. ...The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.
11. According to Section 2(11) CPC, "legal representative"
means a person who in law represents the estate of a de ceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g). 12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique, the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative".
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As observed in Gujarat SRTC v. Ramanbhai Prabhatb hai [(1987) 3 SCC 234 a legal representative is one who suf fers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child."
13. In paragraph 15 of Majnuri Bera, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning. 14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/ and Rs.1,50,000/ per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years. 14. Yet, in another judgment of the Hon'ble Apex Court in case of N.Jayasree Versus Cholamandalam Ms General Insurance Company Ltd., 2022 (14) SCC 712 , where the mother-in-law has been considered dependent of the deceased, the Hon'ble Apex Court after referring Page 9 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025 NEUTRAL CITATION C/FA/267/2020 ORDER DATED: 27/01/2025 undefined judgment in case of Ramanbhai Prabhatbhai (supra) as well as Montford Brothers (supra) held that if legal representatives suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation. The relevant para of Hon'ble Apex Court is para 14 to 20, which reads as under:- "14. The MV Act does not define the term 'legal representative'. Generally, 'legal representative' means a person who in law represents the estate of the deceased person and includes any person or persons in whom legal right to receive compensatory benefit vests. A 'legal representative' may also include any person who intermeddles with the estate of the deceased. Such person does not necessarily have to be a legal heir. Legal heirs are the persons who are entitled to inherit the surviving estate of the deceased. A legal heir may also be a legal representative. 15. Indicatively for the present inquiry, the Kerala Motor Vehicle Rules, 1989, defines the term 'legal representative' as under: "Legal Representative" means a person who in law is entitled to inherit the estate of the deceased if he had left any estate at the time of his death and also includes any legal heir of the deceased and the executor or administrator of the estate of the deceased." 16. In our view, the term 'legal representative' should be given a wider interpretation for the purpose of Chapter XII of MV Act and it should not be confined only to mean the spouse, parents and children of the deceased. As noticed above, MV Act is a benevolent legislation enacted for the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfil its legislative intent. We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency. Section 166 of the MV Act makes it clear that every legal representative who suffers on account of the death of a person in a motor vehicle accident should have a remedy for realization of compensation. 17. It is settled that percentage of deduction for personal expenses cannot be governed by a rigid rule or formula of universal application. It also does not depend upon the basis of relationship of the claimant with the deceased. In some cases, the father may have his own income and thus will not be considered as dependent. Sometimes, brothers and Page 10 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025 NEUTRAL CITATION C/FA/267/2020 ORDER DATED: 27/01/2025 undefined sisters will not be considered as dependents because they may either be independent or earning or married or be dependent on the father. The percentage of deduction for personal expenditure, thus, depends upon the facts and circumstances of each case. 18. In the instant case, the question for consideration is whether the fourth appellant would fall under the expression 'legal representative' for the purpose of claiming compensation. In Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhatbhai and Anr., (1987) 3 SCC 234 this Court while considering the entitlement of the brother of a deceased who died in a motor vehicle accident to maintain a claim petition under the provisions of the MV Act, held as under:
"13. We feel that the view taken by the Gujarat High Court is in consonance with the principles of justice, equity and good conscience having regard to the conditions of the Indian society. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110A to 110F of the Act. These provisions are in consonance with the principles of law of torts that every injury must have a remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compensation payable and its apportionment as required by Section 110B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110A of the Act have to be done in accordance with wellknown principles of law. We should remember that in an Indian family brothers, sisters and brothers' children and sometimes foster children live together and they are dependent upon the breadwinner of the family and if the breadwinner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855 which as we have already held has been substantially modified by the provisions contained in the Act in relation to cases arising out of motor vehicles accidents. We express our approval of the decision in Megjibhai Khimji Vira v. Chaturbhai Taljabhagujri, AIR 1977 Guj 195 and hold that the brother Page 11 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025 NEUTRAL CITATION C/FA/267/2020 ORDER DATED: 27/01/2025 undefined of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110A of the Act if he is a legal representative of the deceased." 19. In Hafizun Begum (Mrs) vs. Mohd. Ikram Heque and Ors., (2007) 10 SCC 715 it was held that: "7. ...12. As observed by this Court in Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique, 1989 Supp (2) SCC 275 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead, it stipulates that a person who may or may not be legal heir, competent to inherit the property of the deceased, can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative'. As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai3 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child." 20. In Montford Brothers of St. Gabriel and Anr. vs. United India Insurance and Anr., (2014) 3 SCC 394 this Court was considering the claim petition of a charitable society for award of compensation on account of the death of its member. The appellantsociety therein was a registered charitable society and was running various institutions as a constituent unit of Catholic church. Its members, after joining the appellantsociety, renounced the world and were known as 'brother'. In this case, a 'brother' died in a motor vehicle accident. The claim petition filed by the appellantsociety seeking compensation on account of the death of aforesaid 'brother' was rejected by the High Court on the ground of its maintainability. This Court after examining various provisions of the MV Act held that the appellantsociety was the legal representative of the deceased 'brother'. While allowing the claim petition it was observed as under: "17. A perusal of the judgment and order of the Tribunal discloses that although Issue 1 was not pressed and hence decided in favour of the appellant claimants, while considering the quantum of compensation for the claimants, the Tribunal adopted a very cautious approach and framed a question for itself as to what should be the criterion for assessing Page 12 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025 NEUTRAL CITATION C/FA/267/2020 ORDER DATED: 27/01/2025 undefined compensation in such case where the deceased was a Roman Catholic and joined the church services after denouncing his family, and as such having no actual dependents or earning- For answering this issue, the Tribunal relied not only upon judgments of American and English Courts but also upon Indian judgments for coming to the conclusion that even a religious order or an organisation may suffer considerable loss due to the death of a voluntary worker. The Tribunal also went on to decide who should be entitled for compensation as legal representative of the deceased and for that purpose it relied upon the Full Bench judgment of Patna High Court in Sudama Devi v. Jogendra Choudhary, AIR 1987 Pat 239 which held that the term "legal representative" is wide enough to include even "intermeddlers" with the estate of a deceased. The Tribunal also referred to some Indian judgments in which it was held that successors to the trusteeship and trust property are legal representatives within the meaning of Section 2(11) of the Code of Civil Procedure."
7. In the case of Birender (supra), Hon'ble Apex Court has addressed the issue after framing question in para 12 as under :-
"12. We have heard Mr. Amit Kumar Singh, learned counsel for the insurance company (appellant) and Ms. Abha R. Sharma, learned counsel for the respondent Nos. 1 and 2. The principal issues which arise for our consideration are as follows: -
(i) Whether the major sons of the deceased who are married and gainfully employed or earning, can claim compensation under the Motor Vehicles Act, 1988 (for short, 'the Act')-
(ii) Whether such legal representatives are entitled only for compensation under the conventional heads
(iii) Whether the amount receivable by the legal representatives of the deceased under the 2006 Rules is required to be deducted as a whole or only portion thereof."Page 13 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025
NEUTRAL CITATION C/FA/267/2020 ORDER DATED: 27/01/2025 undefined 7.1. Hon'ble Apex Court in para 13 to 15 has held as under :-
"13. Reverting to the first issue - that needs to be answered on the basis of the scheme of the Act. Section 166 of the Act provides for filing of application for compensation by persons mentioned in clauses (a) to (d) of sub-Section (1) thereof. Section 166 of the Act, as applicable at the relevant time, reads thus: - "Section 166. Application for compensation.- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made- (a) by the person who has sustained the injury; or (b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. (3) *** (4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act." (emphasis supplied) 14. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is Page 14 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025 NEUTRAL CITATION C/FA/267/2020 ORDER DATED: 27/01/2025 undefined also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus:- "9. In terms of clause (c) of sub-section (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said sub-section makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act. 10. .....The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same. 11. According to Section 2(11) CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g). 12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989 Supp (2) SCC 275 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate Page 15 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025 NEUTRAL CITATION C/FA/267/2020 ORDER DATED: 27/01/2025 undefined of the deceased. All such persons would be covered by the expression "legal representative". As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai [(1987) 3 SCC 234 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child." In paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act.
Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning.
15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/- and Rs.1,50,000/- per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years."
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representative of deceased has right to apply for compensation. Loss of dependency cannot be limited to financial dependency. Legal representative are dependent even emotionally to the deceased and therefore, they are entitled to claim compensation under section 166 of MV Act.
9. In view of above, finding of learned Tribunal that claimant being major son is not entitled to claim compensation does not sustain and requires to be set aside and accordingly, it is set aside.
10. Next question is what would be just, fair and adequate compensation to be paid to the claimants. Looking to the time period of accident occurred to the age of the claimant as well as role of mother in day to day chorus and maintaining family, I fix Rs.3000/- as income of both the deceased for calculating dependency loss. Age of the deceased is more than 50 years, it would attract 10% enhancement in income towards loss of future prospects and multiplier of 9 would be applied as deceased were 56 years and 60 years old. Amount of Rs.48,400/- would be granted towards loss of consortium and Rs.18,150/- towards loss of estate and funeral expenses each.
11. Therefore, total compensation would be as under, which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future loss of income 2,37,600/-
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NEUTRAL CITATION
C/FA/267/2020 ORDER DATED: 27/01/2025
undefined
Rs.3000/- + 10% rise = Rs.3300/- per month and deducting 1/3r, the amount would be Rs.2200/- and applying 9 multiplier, the total amount would be Rs.2,37,600/-
Loss of consortium 48,400/-
Loss of estate 18,150/-
Funeral expenses 18,150/-
Total... 3,22,300/-
Less : Amount which is already awarded 65,000/-
Additional amount which is awarded 2,57,300/-
12. Therefore, I hold that the claimant is entitled to get the enhanced compensation of Rs.2,57,300/- in MACP No.592 of 2009 and MACP No.593 of 2009 with 9% p.a. interest from the date of filing the claim petitions till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Tribunal remain same.
13. For the reasons recorded above, the following order is passed.
13.1 The present appeals are partly allowed.
13.2 Finding of learned Tribunal in regard to inter-se negligence of two vehicles is maintained. Both the Insurance Companies shall deposit their share of awarded amount with 9% p.a. interest from the date of claim petitions till its realization before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.
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13.3 The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimant, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
13.4 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
13.5 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) SATISH Page 19 of 19 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:18 IST 2025